An Open Letter to Missouri Legislators

In all of Missouri history there have only been 28 statute changes placed on the ballot by the initiative petition process. Of the 12 that passed, Proposition B had the narrowest margins. A shift of only 8/10 of 1% would have changed the outcome.

Some of the provision of Prop B are blatently infringements on the rights of some Missourians. What should be done?

Lawmakers Have a Constitutional Obligation to Repeal Prop B

Jefferson City -- January 11, 2011

The Missouri General Assembly has an obligation to repeal at least part of Proposition B in spite of the fact that it was just passed by the voters. Each legislator has a constitutional responsibility to support such repeal regardless of how his district voted on the proposition last November. To do less would be a violation of his oath of office.

Admittedly, that's a bold claim. After all, the people have spoken and we should respect their collective will, shouldn't we?

The Constitutional Case Against Repeal
In fact, a constitutional argument against repeal could be made based on the people's constitutional right to use the initiative petition process.

Our state constitution says “The people reserve power to propose and enact or reject laws and amendments to the constitution by the initiative, independent of the general assembly.” (Art. III § 49) This incredibly important provision is designed to afford the people a “check” on the power of government -- a way to override or bypass officials who have been oppressive or unresponsive to the will of the people.

The initiative petition process is an important constitutional “tool” among the others which are designed to preserve Missouri's system of government and the liberty of her people. It fortifies the first great characteristic of our constitutional republic, which is the premise that “all political power is vested in and derived from the people ”. (See Mo. Const. Art I § 1) Over-riding the people's vote is no small matter.

The Rule of Law Trumps Majority Rule
There is, however, another great characteristic of a constitutional republic – we are governed by the Rule of Law. That means that there are some lawsthat not even a majority of the people have authority to enact. Those would be laws which diminish God-given and constitutionally protected rights.

So on one hand, an American Constitutional Republic protects the people from the tyranny of the fewby ensuring that all political power remains vested in the people, and on the other hand, it protects the individual from the tyranny of the majority through the principles of the Rule of Law.

Prop B is Tyranny of the Majority
Prop B's limit of 50 breeding dogs is tyranny of the majority. It violates basic constitutional principles which override even the right of the people to use the initiative process. Put another way, the people lack jurisdiction to limit a breeder to 50 breeding dogs because such limits amount to a limitation on one's right to earn a living – “the pursuit of happiness and the enjoyment of the gains of their own industry”. (Mo. Const. Art I § 2)

If one takes the arguable position that the state has an interest in the well-being of the property (dogs) of individual citizens, and if there were something special about the number 50, then there might be some state interest that would temper the individual rights mentioned. But 50 is an arbitrary number with no meaning whatsoever. Fifty-one or sixty or two hundred breeding dogs can be kept in as equally healthy and humane conditions as 5 or 10 or 50.

There is no relationship between the number of animals a breeder can have and the well-being of those animals. And there is clearly no compelling state interest in limiting a breeder's income as Prop B does.

Prop B Protects No One's Rights
What about the rights of the neighbors of dog breeders? Does a 50 breeding dog limit protect their rights? No. There is no relationship between the number of breeding animals a breeder can have and the rights of any other person, either. Had the law specified some distance between the breeding operation and the nearest neighbor, one might argue that would protect the rights of others, but it doesn't. A kennel of 5 dogs 20 feet from your bedroom window would likely infringe on your rights more than 200 in the middle of your neighbor's 1000 acre farm.

Lawmakers Must Interpose on Behalf of Dog Breeders
So the 50 dog limit is blatantly unconstitutional; but what obligates the state's law-makers to repeal it?

It is the same constitutional clause that protects the right to the “pursuit of happiness and the enjoyment of the gains of our own industry” – Article I Section 2. The end of that very clause says “that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.”

Each of our legislators and each judge has sworn an oath to support and defend the constitution. They have obligated themselves to secure the rights of the people of Missouri – including those who want to earn a living with more than 50 dogs. It is their job to interpose on behalf of the victims of the tyranny of the majority. To do less is a violation of their oath of office. They must repeal the unconstitutional portions of Prop B.

How to Respect The People's Will and The Rule of Law
The obvious next question is, “How can the Prop B dilemma be addressed in a way that respects both the people's right to the initiative petition process and the rule of law?”

The solution is simple. The General Assembly must repeal Prop B and place it back on the ballot, but without the unconstitutional provisions. The people then have the opportunity to express their will again, but only in a way that does not infringe on the God-given rights of others.

Wouldn't it be more appropriate to simply repeal the unconstitutional portions of Prop B and leave the rest? No, since the vote on November 2nd was so close it is impossible to determine if it would have passed without the unconstitutional provisions. If only 8/10 of 1% of the voters changed their mind, it would have failed. That means it is appropriate to repeal the entire act.

Admittedly, the petition proponents will have to run another campaign, but they won't have to collect signatures again. The extra hassle and expense of a second campaign will be a warning to petition proponents who carelessly draft petitions which infringe on personal liberty.

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Missouri Ballot Initiative History

There have been 372 initiatives on the Missouri ballot since 1910.

254 were placed by the General Assembly and 88 by citizen initiative. Another 26 were voter referendum and 4 were required by the Constitution.

292 of the 372 were for constitutional amendments and 228 of the 292 were placed on the ballot by the General Assembly. 54% of them passed.

The remaining 60 constitutional questions were citizens initiatives. Only 38% of them passed.

54 of the 372 have been ballot questions for statute changes. 26 of them were placed on the ballot by the General Assembly. All but 6 failed.